[Congressional Record Volume 169, Number 157 (Wednesday, September 27, 2023)]
[Senate]
[Pages S4709-S4716]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




SECURING GROWTH AND ROBUST LEADERSHIP IN AMERICAN AVIATION ACT--MOTION 
                         TO PROCEED--Continued

  The PRESIDING OFFICER. The Senator from Delaware.


            Nominations of Robert G. Taub and Thomas G. Day

  Mr. CARPER. Good afternoon, Madam President. I am here today to urge 
my Senate colleagues to join me in considering the confirmation of two 
excellent people to serve on the Postal Regulatory Commission, which is 
the governing body for the U.S. Postal Service: Robert Taub, who is 
currently a commissioner and we are seeking to reconfirm him; and also 
Thomas Day, who has come through our Homeland Security and Governmental 
Affairs Committee and, I think, unanimously recommended for a position 
on the Postal Regulatory Commission.
  Both of these public servants have spent literally decades bettering 
our country.
  Mr. Taub has served on the Commission since 2011, and he actually 
served as its chairman for, I think, more than 6 years.
  Mr. Day has spent--listen to this--over 35 years at the Postal 
Service--35 years at the Postal Service--and another service, as I 
recall, in uniform for our country.
  I would like to add that we have unanimously confirmed Mr. Taub not 
once but twice previously, and there is no doubt that he has served our 
country well.
  I want to share three stories with you, if I could: a little bit 
about the history and the importance of the Postal Service; another 
about Mr. Taub's role in making the Agency what it is today; and a 
third about Mr. Day's influence on the function of our postal system 
across this country.
  In 1787, the Founding Fathers of our country gathered in Philadelphia 
literally to draft a constitution to be able to outline how a new 
country might be formed and actually operate and work for the 
betterment of people who lived here then and in the future. They 
drafted the Constitution, and they sent that Constitution out across 
the 13 colonies and asked the colonies to look at it, kick the tires, 
find out what they liked and what they thought ought to be changed.

  The first State to actually take it up and affirm--ratify, if you 
will--that Constitution was the colony that is now Delaware, the State 
of Delaware.
  On December 7, 1787, after a week or so of debate at the Golden 
Fleece Tavern, the Founding Fathers of Delaware said: We like this 
Constitution. They maybe tweaked it a little bit and sent it on down to 
the other colonies, who followed suit. Delaware was, for one whole 
week, the entire United States of America. Then we opened it up. We let 
in Pennsylvania and Maryland. And the rest, I think, has turned out 
pretty well, for the most part, until now. Hopefully, we will continue 
to exist for many, many years, decades, centuries into the future.
  One key element of the Constitution was the creation of the Postal 
Service. Our first Postmaster General was actually, believe it or not, 
Ben Franklin. Ben Franklin.
  The establishment of the Postal Service represented an important 
early effort to bind us together as a nation--to bind us together as a 
nation--to unite us in communication with one another. That work 
continues today as postal workers cover all 50 States. They did it 
today; they will do it at

[[Page S4710]]

least 6 days this week--and to also make sure that we have the ability 
to provide the Postal Service to the folks who live in the U.S. 
territories, deliver the mail that helps unite our families and helps 
to grow our businesses and helps, really, to enable our democracy to 
function and thrive.
  More than two centuries later, we continue to live up to that 
promise. In 2006, one of our colleagues, Senator Susan Collins and I 
led the passage of the Postal Accountability and Enhancement Act 
literally on this floor where we are gathered today. That legislation 
modernized the Postal Service for the first time, I think, since 1970.
  Just last year, we went on to pass, on top of that, the Postal 
Service Reform Act to shore up the Agency's financial foundation, 
including a requirement for all Postal Service retirees to enroll in 
Medicare when they became eligible for those benefits.
  Over the past couple of years, I have had the opportunity to work 
with Postmaster General Louis DeJoy and the Postal Commission to make 
the Agency even more energy efficient.
  Together, we successfully secured billions of dollars to expand the 
number of electrical vehicles in the Postal Service's delivery fleet. 
The Postal Service has one of the biggest delivery fleets in the 
country. They also have one of the oldest and one of the most polluted. 
What we have done is worked with the leadership of the Postal Service 
to make sure that those old vehicles time out. They really, for the 
most part, have timed out. They need to be replaced. They are going to 
be replaced with vehicles that will not only help us deliver the mail--
and do an even better job of that--but to make sure the delivery 
vehicles that are out there aren't making worse the climate crisis that 
we are going through as a nation, as a planet.
  I want to tell you a little bit more about Mr. Taub, if I could, and 
how he has been integral to the changes that we have seen in the Postal 
Service, especially as it has become more modern and more efficient.
  After spending years as a staff member to Members of Congress and 
Ambassadors and working for the Government Accountability Office, Mr. 
Taub, native New Yorker, became chief of staff to then Congressman John 
McHugh--an old friend and a very good Member of the House; a 
Republican, as I recall.
  Under Representative McHugh's leadership, Mr. Taub helped to craft 
the Postal Accountability and Enhancement Act in the House of 
Representatives. That is the same legislation that I mentioned earlier 
that I worked on with Senator Collins. Together with Representative 
McHugh and his team, we ushered the bill to the President's desk, where 
it was signed into law, again, in 2006.
  This transformation of the Postal Service was just the beginning of 
Mr. Taub's involvement with the Postal Service. After establishing his 
expertise in the public sector, he continued on beyond this work when 
Representative McHugh was appointed Secretary of the Army.
  As Secretary McHugh's principal civilian advisor, Mr. Taub helped 
lead a workforce of more than--get this--1.2 million people and managed 
an annual budget exceeding $200 billion--no small feat. For his 
exemplary work, Mr. Taub was awarded the Army's Decoration for 
Distinguished Civilian Service.
  All this led to Mr. Taub serving on the Postal Regulatory Commission 
on not one, not two, but three Presidents, including both Democrats and 
Republicans.
  He was first nominated to the Commission in 2011, and his strong 
leadership led to his appointment as chairman of the Commission in 
2014.
  As I like to say: In adversity lies opportunity.
  And despite the troubles left over from a previous chairman, Mr. Taub 
took adversity in stride. He embraced the role of chairman with 
diligence and grace. He led a massive undertaking to study and to 
revise a postal rate system. As a result was the Postal Accountability 
Enhancement Act he helped to pass.
  In 2016, his work paid off when he was once again confirmed to be 
chairman to the Commission and continued to serve as chairman.
  Mr. Day has had an incredible record with the Postal Service as well. 
Let me just take a minute to talk about him.
  In his 35 years at the Agency, he has held almost every role 
imaginable, including that of vice president of the engineering 
department and the government affairs department, as well as the chief 
sustainability officer.
  In his role on the sustainability team, Mr. Day helped lead the 
Postal Service into the environmentally conscious practices of the 21st 
century.
  As chairman of the Environment and Public Works Committee, I know the 
importance--that is my role--but I know the importance of our Agencies 
carrying out practices that protect our planet. Mr. Day shares this 
belief and understands it firsthand.
  For example, he has been working to reduce the fuel emissions of the 
aging postal fleet I talked about and has done that over the past 
decade.
  Let me be clear, if I could. The kind of institutional knowledge and 
expertise that Mr. Day holds is unique, and it would make him an 
extremely valuable asset on the Commission.
  Mr. Day also has experience working with the exchange of mail on an 
international scale, serving in senior positions at the Universal 
Postal Union, the United Nations agency, and at the International Post 
Corporation.
  On top of that, he is a graduate of the U.S. Military Academy at West 
Point and has bravely served in the U.S. Army. Besides being a captain 
and a Vietnam veteran serving in the U.S. Senate, when I learned about 
his service in the Army--I am a Navy guy--I said: Different uniforms, 
same team, and thanked him for all of his service in uniform as well.
  There is no doubt that someone with his commitment to our Nation 
would make a terrific addition to the Postal Regulatory Commission.
  Together, Mr. Taub and Mr. Day will continue revising the postal rate 
system and modernizing the Agency for the betterment of our country. 
For this reason, among many others, we think it is imperative that we 
confirm both of them--not one of them but both of them--and make sure 
the Commission is fully, fully staffed.
  Congressional and Postal Service customers rely on the Commission to 
hold the Agency accountable for its service performance and to ensure 
its prices follow the law and its practices follow the law, and it is 
our duty to make sure the Agency can perform at the highest level, 
including for the good of our planet.
  I like to say service to others is the rent we pay for the space we 
take up on this Earth. I think Mr. Taub and Mr. Day's decades of 
service to this country is more rent than most of us will ever be asked 
to pay.
  I urge our colleagues to confirm both Mr. Taub and Mr. Day to ensure 
that the Postal Regulatory Commission can continue to do its important 
work on behalf of all of us, who are the fortunate beneficiaries of the 
Constitution that was written all those years ago and the promise it 
provided for our country.
  With that, Madam President, I would note the absence of a quorum, and 
I thank the Presiding Officer and I thank my colleagues and ask for 
their support of the nomination of these two excellent, excellent 
candidates.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Tribute to Terry ``Tito'' Francona

  Mr. BROWN. Madam President, sometimes we come to the floor in maybe a 
less serious vein. We are all incredulous that while we do our work 
here and keep the government open, the people down the hall there are 
playing political games and threatening a shutdown. And when 55,000 
people in my State and probably 10,000 people in the Presiding 
Officer's State will lose their jobs temporarily, will be furloughed, 
will be laid off, all because they are trying to play political games, 
we talk about that a lot. We need to fix that.
  But, today, I want to rise for a moment on something more 
lighthearted than that, and that is to honor the retiring manager of 
the Cleveland Guardians, Terry Francona, called in Cleveland--referred 
to as ``Tito'' Francona.

[[Page S4711]]

  Cleveland will play their last home game with Tito as their manager 
starting in maybe 20 minutes from now, something like that. Tito has 
been a part of the team since 2013.
  I call him by his first name. I don't know the Cleveland manager. I 
have never met the Cleveland manager. But I have watched him. I watch a 
lot of games on television. But we all refer to him by his first name, 
``Tito.''
  I was at a game earlier this summer, and we were pulling out in a 
traffic jam, and Tito does what I have read in the Plain Dealer that he 
does. All of a sudden, he passed us. The game was about an hour over, 
and he rode by on his little scooter to his little Cleveland 
condominium downtown, just the manager by himself.
  (Mr. OSSOFF assumed the Chair.)
  He didn't have airs about him. He is a normal guy, and we will 
really, really miss him.
  In his baseball career, he left Cleveland. He was the manager in the 
2016 World Series, where my daughters and my wife and I--they broke our 
hearts in game 7 to a team like the Chicago Cubs. And it was really 
amazing that there was a rain delay in the ninth inning, and then they 
came back and Cleveland lost in extra innings.
  A week later, Donald Trump was elected. So I don't think it was a 
good week for the country. But that is just my biased opinion, perhaps.
  But in Ohio, in Cleveland, if you are a Cleveland Guardians fan, you 
know about perseverance. His baseball career extends back to when he 
joined Major League Baseball as a player. Spending 9 years in the 
field, he played a year for Cleveland, but he is a baseball lifer. But 
his life is very inextricably linked to Cleveland, as a baseball player 
and manager.
  I am not sure he was born in Cleveland. He lived in Cleveland when 
his dad played for the Cleveland Indians in the old Municipal Stadium. 
Notably, his dad twice was traded for Larry Doby, the first African-
American player in the American League and one of the Hall of Fame 
members because of his baseball play, his courage, his guts, and his 
note of being so important to history and breaking the color line.
  I grew up watching his father play. I saw his father, once in a 
double-header, get seven hits. And the eighth time he came to the 
plate, Brooks Robinson--the third base player from the Orioles who just 
passed away--Brooks Robinson threw him out. He would have been 8 for 8 
in a double-header.
  As I said, his dad was traded twice for Larry Doby. His dad, one 
year, should have led the league at hitting, at .363 but was 
disqualified because he had one too few plate appearances. He batted 
399 times instead of 400, even though he walked a number of times--too 
much inside baseball, maybe, for the Senate floor and for my colleagues 
to care about.
  But his dad played for years and was an All-Star in 1961. He hit .363 
in 1959 and was a fan favorite.
  So the Francona family was formed in Cleveland and grew up in 
Cleveland in that sense. It reminds me of how baseball is a game that 
spans generations and brings people together.
  I grew up 2 hours south of Cleveland. My dad used to take us to Major 
League Baseball games, to five or six games a year--five or six times a 
year, often double-headers. And my dad hated the New York Yankees so 
much that he would never take us to a Yankees game because he didn't 
want Mickey Mantle, the star of the Yankees, to get 10 cents of his 
ticket. So I never saw the Yankees play until I could drive myself to 
New York.
  When Tito Francona joined the Montreal Expos in 1981, he succeeded 
his father as a baseball player. He played in Cleveland for a year. In 
1990, he retired from the game and not a particularly stellar baseball 
career, not as good as his father's.
  But then he became a manager. He managed the Phillies. He managed the 
Red Sox in two world championships. He then came home to us in 
Cleveland in 2013. In 2016, Cleveland won the American League 
Championship with the Indians--now, of course, the Guardians. He led 
the team to the World Series.
  As I said, game 7 was quite an experience that I could take my 
daughters to, then in their thirties. And we had gone to baseball 
games. And my dad took me for years, and we got to see this team we 
loved and this team we followed so closely go to the World Series--a 
team that wasn't considered at the beginning of the season World Series 
caliber. And it was quite a season.
  And the next year, Cleveland came back. They, at one point, won 22 
games in a row. Only once in Major League Baseball did a team win more 
than that, when the Giants, in 1926, won 26 in a row. So it was an 
incredible streak.
  But more important, his players reached a level of excellence that 
was beyond what most people think was their skill level. Cleveland, to 
owners that have never spent the money--owners in the Presiding 
Officer's home State, in Atlanta, they try to buy pennants like the 
Yankees do and the Mets do and the Dodgers do and the Red Sox do. They 
spend so much money to try to buy the best players. Cleveland has never 
had owners that were either that rich or that generous. So Tito had to 
figure out how to win without that kind of money.
  But what he has done, which I so much like, is he gets out of his 
players a skill and a drive that most managers are not able to achieve. 
You can tell he loves America's game. I mean, he shared that with all 
of us.
  He loves the city where his team plays and where he manages. He has 
been there for 10 years, in Cleveland. I guess 11 years.
  His players could have gone somewhere else and made more money. The 
star player for Cleveland, a young man named Jose Ramirez, signed a 
long-term contract, made a whole lot of money, but everybody said he 
could have made so much more money if he had gone to New York or 
Atlanta or L.A. or Boston and signed huge contracts with really rich, 
generous owners. I think his players want to play for him, and he 
helped put our team on the map again.
  I just wanted to say to Tito Francona, thank you for everything you 
have done for Cleveland. Thank you for the memories and the joy you 
have brought so many of us as fans.
  We celebrate his contributions to baseball, his commitment to 
Cleveland, and his extraordinary career.


                         Remembering Tom Conway

  Mr. President, on a much more serious note, I want to honor a friend 
of mine who passed away this week, a national leader of stature who 
made such a difference in working people's lives.
  I come to this floor to talk about the dignity of work, to talk about 
people who put their lives on the line and put their careers front and 
center about workers. Tom Conway did that.
  Tom Conway passed away in the last few days, the president of the 
United Steelworkers. He joined the labor movement in 1978. He worked as 
a millwright. ``Millwright'' means those workers who essentially fix 
and make equipment work inside plants. He worked at the Burns Harbor 
Works of Bethlehem Steel in northwest Indiana.
  Forty years ago, 45 years ago, he joined Local 6787. He dedicated his 
life to expanding opportunity and economic security for workers. 
Whether on a picket line or sitting across from the steel executives, 
his values were on his sleeve. His commitment to workers never wavered.
  On trade issues and worker safety, always one of the first calls I 
made was to talk to Tom Conway, to get wisdom from Tom Conway, to get 
perspective from Tom Conway, because I knew always he was looking out 
for the workers whom he represented.
  Steelworkers in Ohio knew what those bad trade deals--from NAFTA to 
PNTR with China, to TPP, to CAFTA--all the issues that, frankly, are a 
big part of the reasons my State has struggled with so many lost jobs.
  Given this devastation, Tom saw across the industry. You might 
understand if he became a pessimist, threw up his hands, and gave up. 
He was never that--far from that. He drew his energy from the 
resilience of American steelworkers and steel communities across the 
Midwest.
  He knew what we know in Ohio, that American workers can compete with 
anyone. They just need a level playing field. He never stopped fighting 
for that level playing field, for fair trade, for real investment in 
American industry, for strong enforcement of our trade laws.
  Because of his advocacy and the advocacy of so many Ohio 
steelworkers, we made real progress. We passed the

[[Page S4712]]

original Level the Playing Field Act, the landmark overall of our trade 
remedy laws, to allow steelworkers to fight back against cheating by 
China, against dumping steel from China, against other unfair foreign 
competition. We passed the strongest ever ``Buy America'' rules to 
ensure that American tax dollars support American workers.
  He never gave up on American steel. He never gave up on American 
workers. He saw the potential in this union to grow. He knew that, if 
more people carried a union card, their lives would be better. It would 
mean higher wages and better benefits. It would mean a more secure 
retirement. It would mean a safer workplace. It would mean more control 
over your schedule. That is what carrying a union card means.
  My wife will say that her dad's union card saved her life. She grew 
up and at 16 had an asthma attack. She lived almost 2 hours from 
Cleveland Clinic. She got an ambulance to take her to the clinic. She 
was there for a week. It saved her life. Her dad could afford that 
care, that ambulance, that time in Cleveland Clinic because he carried 
a union card, and they negotiated for healthcare benefits. That is what 
Tom Conway did his whole life.
  I wear on my lapel a pin depicting a canary in a birdcage. The 
mineworkers used to take the canary down in the mines a hundred years 
ago. If the canary died, the mineworker was on his own. He knew that he 
didn't have a union strong enough or a government that cared enough to 
protect him. That is why he carried the canary down into the mines.
  This was given to me by a steelworker some 20 years ago in Lorain, 
OH. I have worn it on my lapel ever since. And that is what Tom Conway 
is about.
  John Shinn, the secretary-treasurer of USW said: Solidarity wasn't 
just a word to Tom. It was a way of life. He understood that, by 
working together, we balance the scales against greedy corporations.
  We see it now. Chrysler, now called Stellantis, has made $12 billion 
just in calendar year 2023. Stellantis' CEO makes 800 times what the 
entry-level worker at Stellantis makes.
  Tom Conway understood that we fight against that kind of worker 
greed, and we help lift up workers so they can share in the wealth 
created by their work. Balancing those scales is what unions are all 
about. It is why autoworkers are in that picket line. That is what they 
are doing. It is what Tom Conway led the steelworkers to do.
  We honor his memory, his legacy best by carrying on his life's work. 
His successor at USW is Dave McCall, fellow Ohioan. Dave McCall worked 
with and has known Tom Conway for over 40 years. He will serve out the 
remainder of his term. I can't think of anyone better to carry on Tom's 
legacy than Dave McCall.
  Dave and I have been in the trenches together for the better part of 
our entire careers, walking picket lines, talking to Ohio workers at 
union halls and fighting against bad trade policy that this body far 
too often falls for because corporate lobbyists swarm this place and 
push these bad trade agreements, always, always, always at the expense 
of workers.
  Dave McCall understands the dignity of work, as Tom did. He spent his 
whole life fighting for it. He would have made Tom Conway proud.
  I ask my colleagues to join me in honoring Tom Conway today. Our 
thoughts are with his family, his longtime partner Carol, his three 
sons and six grandchildren, and with steelworker sisters and brothers 
in Ohio and around the country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.


                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, last week, I spoke about the scheme of 
corruption by rightwing billionaires out to capture the Supreme Court. 
I mentioned their lawyers' blockade of our investigation into this 
corruption and described how little sense their lawyers' arguments 
made.
  That brings us to this speech today. The connection is that those, in 
my view, nonsense lawyers' arguments badly needed propping up. And who 
should come to the rescue but U.S. Supreme Court Justice Sam Alito. 
Alito's actions propping up that argument caused me to write this 
ethics complaint against him.
  I ask unanimous consent to have printed in the Record my full letter 
to Chief Justice Roberts and a portion of the letter from Mr. Rivkin at 
the end of my remarks.
  Mr. President, this complaint highlights some of the Supreme Court's 
current legitimacy problems, which are legion. One is that the Court 
has no procedure for an ethics complaint. I had to write to Chief 
Justice Roberts, both in his capacity as Chief Justice and in his 
capacity as Chair of the Judicial Conference, because, unlike in every 
other Federal court, there is no clarity about process.
  The Supreme Court has no formal process for receiving or 
investigating such complaints, so they go there to die. Complaints 
about Supreme Court Justices have sometimes been referred to the 
Judicial Conference, and there, they have mostly disappeared. So it is 
a mess.
  The Supreme Court--the body with the highest responsibility to police 
proper procedure and fair factfinding throughout the rest of 
government--has no clear and proper procedure for itself. That is 
weird, and that is wrong.
  Nothing prohibits the Court or the Judicial Conference from adopting 
procedures to address complaints of misconduct by the Justices. They 
just haven't bothered to. The most basic modicum of any due process is 
fair factfinding, but they have no process at all to find out even what 
the facts are. That is simply not defensible. That has to change, and 
my complaint presents the Court and the conference that opportunity.
  Now let's move from procedure to the substance of my complaint about 
Justice Alito. At one level, it is an obvious slam-dunk ethics 
violation. At another, it will take a lot more digging. Let me explain.
  My complaint relates to a so-called ``interview'' published on the 
Wall Street Journal's editorial page July 28 of this year. How it is 
both an interview and on the Wall Street Journal's editorial page, I am 
not going to explore.
  Justice Alito was the person ``interviewed.'' His ``interviewers'' 
were David Rivkin and James Taranto. In this interview, Justice Alito 
offered his legal opinion that ``[n]o provision in the Constitution 
gives [Congress] the authority to regulate the Supreme Court--period.'' 
That is the end of his quote.
  That comment wasn't just floating in the ether; it was related to my 
Supreme Court ethics bill, the Supreme Court Ethics, Recusal, and 
Transparency Act, which the Senate Judiciary Committee had advanced 
just 1 week before, and it also related to an array of congressional 
oversight information requests from the Senate Judiciary Committee and 
from the Senate Finance Committee.
  More on that later. Back to the slam-dunk part. I sit on the Senate 
Judiciary Committee, where we hear in every Supreme Court confirmation 
hearing that it would be improper, that it would be wrong even in a 
confirmation hearing to express opinions on matters that might come 
before the Court. Well, obviously, Alito's interview comments--his Wall 
Street Journal editorial page ``opining''--touched on a matter that 
might come before the Court. That is the slam dunk.
  Look at what other Justices have testified about this opining 
problem, but let's start with Alito himself, who testified in his 
confirmation hearing that it would be ``improper'' and a ``disservice 
to the judicial process'' for a Supreme Court nominee to comment on 
issues that might come before the Court. His words.
  Consider also Justice Thomas, who testified that such opining would 
``leave the impression that I prejudged this issue,'' which would be, 
he said, ``inappropriate for any judge who is worth his or her salt.''
  Justice Kagan told the committee it would be ``inappropriate'' for 
her to ``give any indication of how she would rule in a case'' even 
``in a somewhat veiled manner.''
  Justice Kavanaugh testified that nominees ``cannot discuss cases or 
issues that might come before them.'' He went on that prejudging an 
issue in this manner is ``inconsistent with judicial independence, 
rooted in Article

[[Page S4713]]

III.'' He continued that ``litigants who come before [the Court] have 
to know we have an open mind, that we do not have a closed mind.'' He 
quoted Justice Ginsburg: ``No hints, no forecasts, no previews.''
  Justice Gorsuch went one better in his confirmation hearing. He 
actually testified that this ``no opining'' rule applies to discussions 
about Supreme Court ethics--the exact topic of Justice Alito's Wall 
Street Journal opining.
  Senator Blumenthal on the committee had asked Judge Gorsuch about 
proposed ethics rules for the Supreme Court and whether they would 
violate separation of powers. Gorsuch answered:

       Senator, I am afraid I just have to respectfully decline to 
     comment on that because I am afraid that could be a case or 
     controversy, and you can see how it might be. I can 
     understand Congress' concern and interest in this area. I 
     understand that. But I think the proper way to test that 
     question is the prescribed process of legislation and 
     litigation.

  In sum, the Court itself is plainly on record that this sort of 
opining is wrong. So that is broken rule one, just offering the 
opinion, but it gets worse. This was not just general opining out into 
the general ether. Alito's comments referred to a specific, ongoing 
legal dispute. Let me explain.

  There are ongoing Senate investigations into the scandal of secret 
billionaire gifts to certain Justices. The Senate Judiciary Committee 
is investigating reports that Supreme Court Justices accepted and 
improperly failed to disclose, in violation of Congress's disclosure 
laws, lavish gifts from billionaire benefactors seeking to influence 
the Court. The Senate Finance Committee is investigating Federal tax 
compliance regarding those undisclosed gifts. Were tax laws broken? 
Were proper declarations made?
  In those congressional investigations, requests for information have 
been sent out. In response to those requests, objections have been 
raised. Here is where Alito comes in. The objections by the 
billionaires' lawyers assert that Congress has no constitutional 
authority to legislate in this area--hence, no authority to 
investigate. They assert--in my view, plainly wrongly--that our 
constitutional separation of powers blocks any congressional action in 
this area, which in turn, they assert--also plainly wrongly, in my 
view--blocks any congressional investigation.
  Set aside the demerits of that argument--for which I refer you to the 
lawyers' letters I added to the record in my previous speech and my own 
takedown of that argument--sound or unsound, the point is, it is their 
argument in that ongoing dispute.
  In that ongoing dispute, Justice Alito's Wall Street Journal comments 
prop up that argument. The language is nearly identical. You can 
compare it for yourself. In fact, lawyers for some of the billionaires 
to whom we have sent information requests have actually quoted Justice 
Alito's comment in declining to respond.
  So this is not just some improper general opining; it is a Supreme 
Court Justice leaning in to one side of a specific ongoing dispute and 
being used and quoted by one side of a specific ongoing dispute. That 
is pretty bad. It gets worse.
  One of the interviewers in that Wall Street Journal interview, 
Attorney David Rivkin, wasn't just some interviewer; he is the attorney 
for a party in that specific ongoing dispute. Rivkin is the attorney 
making the precise legal argument that Alito echoed, and he is making 
it in that ongoing dispute. None of this, of course, was disclosed in 
the so-called ``interview.''
  A logical mind would rightfully ask whether Justice Alito opined on 
this matter at the behest of his interviewer, Attorney Rivkin. A 
suspicious mind would even wonder whether Attorney Rivkin prepped his 
witness, as lawyers are wont to do. With no means of factfinding, all 
this remains unknown.
  Bad enough to opine on some general matter that may come before the 
Court; worse when the opining brings a Supreme Court Justice's 
influence to bear in a specific ongoing legal dispute; and worse yet 
when the influence of the Justice might have been summoned by counsel 
to a party in that dispute.
  The timeline is suspicious. Mr. Rivkin's interview with Justice Alito 
was reportedly conducted in early July 2023. Well, on July 11, Chairman 
Durbin and I had sent a letter to Rivkin's client in that dispute 
inquiring about undisclosed gifts and travel provided to Justices. On 
July 20, the Senate Judiciary Committee voted to advance my judicial 
ethics bill.
  By the way, the Rivkin-Alito Congress-has-no-authority argument fared 
very poorly that day in the committee.
  On July 25, Mr. Rivkin, by letter, refused to answer our information 
requests on the purported ground that ``any attempt by Congress to 
enact ethics standards for the Supreme Court would falter on 
constitutional objections.'' Three days later, on July 28, comes the 
supportive opining from Justice Alito about those constitutional 
objections.
  There are a lot of questions that need answering under oath about how 
this mess played out.
  But wait, there is more. Attorney Rivkin's client in that dispute has 
a relationship with Justice Alito. He is a friend and ally of Justice 
Alito's. Rivkin's client is Leonard Leo. Leo is not just a friend and 
ally of Alito's. Our oversight questions that Attorney Rivkin is 
blocking relate to Mr. Leo's actions to facilitate gifts for Supreme 
Court Justices from rightwing billionaires of free and undisclosed 
transportation and lodging. Mr. Leo didn't just facilitate; he was 
Justice Alito's companion on the luxurious Alaskan fishing trip in 2008 
that rightwing billionaires funded.
  The relationship goes back. Leo's political organization ``had run an 
advertising campaign supporting Alito in his confirmation fight, and 
Leo was reportedly part of the team that prepared Alito for his Senate 
hearings.''
  So it appears that Justice Alito, A, improperly opined in the Wall 
Street Journal, B, to influence a specific ongoing dispute, C, possibly 
at the behest of counsel in that dispute, and D, to the benefit of a 
personal friend and ally.
  None of that was disclosed in the interview either, and it brings us 
to the last and most damning point.
  Justice Alito's opining, potentially at the behest of his friend and 
ally's lawyer, props up an argument being used to block inquiry into 
undisclosed gifts and travel received by Justice Alito himself. Justice 
Alito himself is the ultimate beneficiary of his own improper opining. 
It comes full circle.
  In the worst-case scenario, Justice Alito broke the rules against 
opining in order to facilitate an organized campaign to obstruct 
congressional investigation into tens of thousands of dollars in gifts 
he, Alito, personally received and doesn't want investigated.
  Whether Justice Alito was unwittingly used to provide fodder for such 
interference or intentionally participated in that interference plan 
and whether he did it to protect the rightwing billionaires or himself 
or both, those are questions whose answers require additional facts.
  The heart of any due process is a fair determination of the facts. 
Uniquely in the whole of government, the Supreme Court has insulated 
its Justices from any semblance of fair factfinding. The obstruction of 
our inquiries by Mr. Rivkin and Mr. Leo, fueled by Justice Alito's 
opining, prevents Congress from gathering those facts, and the Supreme 
Court won't even look. That can't be--not in a nation of laws. That is 
flagrantly, obviously wrong.
  So I have asked the Chief Justice or the Judicial Conference to take 
whatever steps are necessary to develop a process to investigate this 
affair and provide the public with the prompt and trustworthy answers 
it deserves. The Supreme Court's legitimacy cannot stand on an edifice 
of obstruction, secrecy, and lies.
  To be continued, Mr. President.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Washington, DC,

                                                September 4, 2023.
       Dear Chief Justice/Chairman Roberts: I write to lodge an 
     ethics complaint regarding recent public comments by Supreme 
     Court Justice Samuel Alito, which appear to violate several 
     canons of judicial ethics, including standards the Supreme 
     Court has long applied to itself.
       I write to you in your capacity both as Chief Justice and 
     as Chair of the Judicial Conference because, unlike every 
     other federal court, the Supreme Court has no formal process 
     for receiving or investigating such complaints, and asserted 
     violations by justices of relevant requirements have 
     sometimes been referred to the Judicial Conference and its 
     committees. I include all justices in carbon copy because I 
     am urging the

[[Page S4714]]

     Supreme Court to adopt a uniform process to address this 
     complaint and others that may arise against any justice in 
     the future.
       The recent actions by Justice Alito present an opportunity 
     to determine a mechanism for applying the Judicial Conduct 
     and Disability Act to justices of the Supreme Court. Nothing 
     prohibits the Court or the Judicial Conference from adopting 
     procedures to address complaints of misconduct. The most 
     basic modicum of any due process is fair fact-finding; second 
     to that is independent decision-making.


                               background

       Some of the background facts here were related by members 
     of the Senate Judiciary Committee who signed a letter to you 
     dated August 3, 2023. As that letter explains, the Wall 
     Street Journal on July 28, 2023, published an interview with 
     Justice Alito conducted by David Rivkin and James Taranto. 
     Justice Alito's comments during that interview give rise this 
     complaint. The interview had the effect, and seemed intended, 
     to bear both on legislation I authored and on investigations 
     in which I participate.
       During the interview, Justice Alito stated that ``[n]o 
     provision in the Constitution gives [Congress] the authority 
     to regulate the Supreme Court--period.'' Justice Alito's 
     comments appeared in connection to my Supreme Court Ethics, 
     Recusal, and Transparency Act, which the Senate Judiciary 
     Committee had advanced just one week before the publication 
     of this interview. That bill would update judicial ethics 
     laws to ensure the Supreme Court complies with ethical 
     standards at least as demanding as in other branches of 
     government.
       Justice Alito's comments echoed legal arguments made to 
     block information requests from the Senate Judiciary 
     Committee and the Senate Finance Committee, on both of which 
     I serve. Those arguments assert (in my view wrongly) that our 
     constitutional separation of powers blocks any congressional 
     action in this area, which in turn is asserted (also wrongly, 
     in my view) to block any congressional investigation. Sound 
     or unsound, it is their argument against our investigations, 
     as reflected in the letter appended hereto. The subjects of 
     these committee investigations are matters relating to dozens 
     of unreported gifts donated to justices of the Supreme Court.
       As the author of the bill at issue, and as the only Senator 
     serving in the majority on both investigating committees, I 
     bring this complaint.


    Improper Opining on a Legal Issue that May Come Before the Court

       On the Senate Judiciary Committee, we have heard in every 
     recent confirmation hearing that it would be improper to 
     express opinions on matters that might come before the Court. 
     In this instance, Justice Alito expressed an opinion on a 
     matter that could well come before the Court.
       That conduct seems indisputably to violate the Code of 
     Conduct for United States Judges. Canon 1 emphasizes a 
     judge's obligation to ``uphold the integrity and independence 
     of the judiciary''; Canon 2(A) instructs judges to ``act at 
     all times in a manner that promotes public confidence in the 
     integrity and impartiality of the judiciary''; and Canon 
     3(A)(6) provides that judges ``should not make public comment 
     on the merits of a matter pending or impending in any 
     court.'' These canons help ensure ``the integrity and 
     independence of the judiciary'' by requiring judges' conduct 
     to be at all times consistent with the preservation of 
     judicial impartiality and the appearance thereof.
       The Court's Statement of Ethics Principles and Practices, 
     ``to which all of the current members of the Supreme Court 
     subscribe,'' concurs. That document makes clear that, before 
     speaking to the public, ``a Justice should consider whether 
     doing so would create an appearance of impropriety in the 
     minds of reasonable members of the public. There is an 
     appearance of impropriety when an unbiased and reasonable 
     person who is aware of all relevant facts would doubt that 
     the Justice could fairly discharge his or her duties.'' These 
     same precepts are also enforced through the federal recusal 
     statute, which requires all federal justices and judges to 
     recuse themselves from any matter in which their impartiality 
     could reasonably be questioned.
       Making public comments assessing the merits of a legal 
     issue that could come before the Court undoubtedly creates 
     the very appearance of impropriety these rules are meant to 
     protect against. As Justice Kavanaugh pointed out, prejudging 
     an issue in this manner is ``inconsistent with judicial 
     independence, rooted in Article III,'' because ``litigants 
     who come before [the Court] have to know we have an open 
     mind, that we do not have a closed mind.''
       Justice Alito and every other sitting member of the Supreme 
     Court told the Senate Judiciary Committee during their 
     confirmation hearings that it would be (in the words of 
     Justice Alito) ``improper'' and a ``disservice to the 
     judicial process'' for a Supreme Court nominee to comment on 
     issues that might come before the Court. Justice Thomas said 
     that such comments would at minimum ``leave the impression 
     that I prejudged this issue,'' which would be ``inappropriate 
     for any judge who is worth his or her salt.'' Justice Kagan 
     echoed those comments, telling the Committee it would be 
     ``inappropriate'' for her to ``give any indication of how she 
     would rule in a case''--even ``in a somewhat veiled manner.'' 
     And Justice Kavanaugh explained that nominees ``cannot 
     discuss cases or issues that might come before them.'' He 
     continued: ``As Justice Ginsburg said, no hints, no 
     forecasts, no previews.''
       Justice Gorsuch made clear during his confirmation hearing 
     that this rule applies to the precise topic on which Justice 
     Alito opined to the Wall Street Journal:
       Senator Blumenthal. Thank you. I also want to raise a 
     question, talking about court procedure, relating to 
     conflicts of interest and ethics. I think you were asked 
     yesterday about the proposed ethics rules that have been 
     applied to your court--
       Judge Gorsuch. Yes.
       Senator Blumenthal: [continuing]. To the appellate court, 
     to the District Court, but not to the Supreme Court. Would 
     you view such legislation as a violation of the separation of 
     powers?
       Judge Gorsuch. Senator, I am afraid I just have to 
     respectfully decline to comment on that because I am afraid 
     that could be a case or controversy, and you can see how it 
     might be. I can understand Congress? concern and interest in 
     this area. I understand that. But I think the proper way to 
     test that question is the prescribed process of legislation 
     and litigation.
       You, Justice Sotomayor, and Justice Barrett each expressly 
     cited the canons of judicial ethics as the source of a 
     nominee's obligation to refuse to comment on such matters. 
     There seems to be no question that Justice Alito is bound by, 
     and that his opining violated, these principles.


               Improper Intrusion into a Specific Matter

       These principles apply broadly to any opining, on any issue 
     that might perhaps come before the Court. But here it was 
     worse; it was not just general opining, it was opining in 
     relation to a specific ongoing dispute. The quote at issue in 
     the article--``No provision in the Constitution gives 
     [Congress] the authority to regulate the Supreme Court''--
     directly follows a mention of my judicial ethics bill. 
     Justice Alito's decision to opine publicly on the 
     constitutionality of that bill may well embolden legal 
     challenges to the bill should it become law. Indeed, his 
     comments encourage challenges to all manner of judicial 
     ethics laws already on the books.
       Justice Alito's opining will also fuel obstruction of our 
     Senate investigations into these matters. To inform its work 
     on my bill and other judicial ethics legislation, and oversee 
     the performance of the statutory Judicial Conference in this 
     arena, the Senate Judiciary Committee is investigating 
     multiple reports that Supreme Court justices have accepted 
     and failed to disclose lavish gifts from billionaire 
     benefactors. Separately, the Senate Finance Committee is 
     investigating the federal tax considerations surrounding the 
     billionaires? undisclosed gifts to Supreme Court justices. 
     Both committees' inquiries have been stymied by individuals 
     asserting that Congress has no constitutional authority to 
     legislate in this area, hence no authority to investigate. 
     Justice Alito's public comments prop up these theories.
       As the author of the bill in question and as a participant 
     in the related investigations, I feel acutely the targeting 
     of this work by Justice Alito, and consider it more than just 
     misguided or accidental general opining. It is directed to my 
     work.


 Improper Intrusion into a specific matter at the behest of counsel in 
                              that matter

       Compounding the issues above, Attorney David Rivkin was one 
     of the interviewers in the Wall Street Journal piece, and 
     also a lawyer in the above dispute. This dual role suggests 
     that Justice Alito may have opined on this matter at the 
     behest of Mr. Rivkin himself. Bad enough that a justice 
     opines on some general matter that may come before the Court; 
     worse when the opining brings his influence to bear in a 
     specific ongoing legal dispute; worse still when the 
     influence of a justice appears to have been summoned by 
     counsel to a party in that dispute.
       The timeline of the Wall Street Journal interview suggests 
     that its release was coordinated with Mr. Rivkin's efforts to 
     block our inquiry. Mr. Rivkin's interview with Justice Alito 
     was reportedly conducted in ``early July'' 2023. On July 11, 
     Senate Judiciary Committee Chair Durbin and I sent a letter 
     to Mr. Rivkin's client inquiring about undisclosed gifts and 
     travel provided to justices. On July 20, the Senate Judiciary 
     Committee voted to advance my judicial ethics bill mentioned 
     above. (Notably, the Rivkin/Alito Congress-has-no-authority 
     argument fared poorly in the committee that day, with no 
     Republican rising to rebut the arguments against it.) On July 
     25, Mr. Rivkin by letter refused to provide the requested 
     information on the purported ground that ``any attempt by 
     Congress to enact ethics standards for the Supreme Court 
     would falter on constitutional objections.'' That response, 
     appended hereto, was instantly published in Fox News Three 
     days later, on July 28, the Wall Street Journal editorial 
     page published the supportive opining from Justice Alito.


  Improper Intrusion into a Specific Matter Involving an Undisclosed 
                         Personal Relationship

       On top of all this, the dispute upon which Justice Alito 
     opined involves an individual with whom Justice Alito has a 
     longstanding personal and political relationship. As my 
     colleagues and I pointed out in our August 3 letter, ``Mr. 
     Rivkin is counsel for Leonard Leo with regard to [the 
     Judiciary] Committee's investigation into Mr, Leo's actions 
     to facilitate gifts of free transportation and lodging that 
     Justice Alito accepted from

[[Page S4715]]

     Paul Singer and Robin Arkley II in 2008.'' Mr. Leo was 
     Justice Alito's companion on the luxurious Alaskan fishing 
     trip in 2008 and facilitated the gifts to the justice of free 
     transportation and lodging. Two years earlier, Mr. Leo's 
     political organization ``had run an advertising campaign 
     supporting Alito in his confirmation fight, and Leo was 
     reportedly part of the team that prepared Alito for his 
     Senate hearings.
       The timing of Justice Alito's opining suggests that he 
     intervened to give his friend and political ally support in 
     his effort to block congressional inquiries. It appears that 
     Justice Alito (a) opined (b) on a specific ongoing dispute 
     (c) at the behest of counsel in that dispute (d) to the 
     benefit of a personal friend and ally. Each is objectionable, 
     and appears to violate, inter alia, Canon 2(B) of the Code of 
     Conduct for United States Judges, which provides, ``A judge 
     should neither lend the prestige of the judicial office to 
     advance the private interests of the judge or others nor 
     convey or permit others to convey the impression that they 
     are in a special position to influence the judge.''


          Improper Use of Judicial Office for Personal Benefit

       The final unpleasant fact in this affair is that Justice 
     Alito's opining, apparently at the behest of his friend and 
     ally's lawyer, props up an argument being used to block 
     inquiry into undisclosed gifts and travel received by Justice 
     Alito. At the end, Justice Alito is the beneficiary of his 
     own improper opining. This implicates Canon 2(B) strictures 
     against improperly using one's office to further a personal 
     interest: a justice obstructing a congressional investigation 
     that implicates his own conduct.
       The Senate Judiciary Committee's investigation encompasses 
     reports that Justice Alito accepted but did not disclose 
     gifts of travel and lodging valued in the tens of thousands 
     of dollars. Further investigation may reveal additional 
     information that Justice Alito would prefer not come to 
     light. The facts as already reported suggest that Justice 
     Alito likely violated the financial disclosure requirements 
     of the Ethics in Government Act. Perhaps Justice Alito should 
     also have recused himself as required by the recusal statute 
     in a 2014 case involving a company owned by Paul Singer, one 
     of the billionaires who attended and paid for his Alaskan 
     fishing vacation. Justice Alito's public suggestion that 
     these laws are unconstitutional as applied to the Supreme 
     Court, and that Congress lacks authority to amend them or 
     investigate their implementation or enforcement, appears 
     designed to impede Senate efforts to investigate these and 
     other potential abuses.


                               Conclusion

       In the worst case facts may reveal, Justice Alito was 
     involved in an organized campaign to block congressional 
     action with regard to a matter in which he has a personal 
     stake. Whether Justice Alito was unwittingly used to provide 
     fodder for such interference, or intentionally participated, 
     is a question whose answer requires additional facts. The 
     heart of any due process is a fair determination of the 
     facts. Uniquely in the whole of government, the Supreme Court 
     has insulated its justices from any semblance of fair fact-
     finding. The obstructive campaign run by Mr. Rivkin and Mr. 
     Leo, fueled by Justice Alito's opining, appears intended to 
     prevent Congress from gathering precisely those facts.
       As you have repeatedly emphasized, the Supreme Court should 
     not be helpless when it comes to policing its own members' 
     ethical obligations. But it is necessarily helpless if there 
     is no process of fair fact-finding, nor independent decision-
     making. I request that you as Chief Justice, or through the 
     Judicial Conference, take whatever steps are necessary to 
     investigate this affair and provide the public with prompt 
     and trustworthy answers.
           Sincerely,
     Sheldon Whitehouse,
       Chairman, Senate Judiciary Subcommittee on Federal Courts, 
     Oversight, Agency Action, and Federal Rights.
                                  ____



                                              Baker Hostetler,

                                                    July 25, 2023.
     Re Response to July 11, 2023 Letter to Leonard Leo.

       Dear Chairman Durbin and Senator Whitehouse: We write on 
     behalf of Leonard Leo in response to your letter of July 11, 
     2023, which requested information concerning Mr. Leo's 
     interactions with Supreme Court Justices. We understand this 
     inquiry is part of an investigation certain members of the 
     Senate Judiciary Committee have undertaken regarding ethics 
     standards and the Supreme Court. While we respect the 
     Committee's oversight role, after reviewing your July 11 
     Letter, the nature of this investigation, and the 
     circumstances surrounding your interest in Mr. Leo, we 
     believe that your inquiry exceeds the limits placed by the 
     Constitution on the Committee's investigative authority.
       Your investigation of Mr. Leo infringes two provisions of 
     the Bill of Rights. By selectively targeting Mr. Leo for 
     investigation on a politically charged basis, while ignoring 
     other potential sources of information on the asserted topic 
     of interest who are similarly situated to Mr. Leo but have 
     different political views that are more consistent with those 
     of the Committee majority, your inquiry appears to be 
     political retaliation against a private citizen in violation 
     of the First Amendment. For similar reasons, your inquiry 
     cannot be reconciled with the Equal Protection component of 
     the Due Process Clause of the Fifth Amendment. And regardless 
     of its other constitutional infirmities, it appears that your 
     investigation lacks a valid legislative purpose, because the 
     legislation the Committee is considering would be 
     unconstitutional if enacted.


    The Committee's Inquiry Raises Serious First Amendment Concerns

       Bedrock constitutional principles dictate that ``no 
     official, high or petty, can prescribe what shall be orthodox 
     in politics, nationalism, religion, or other matters of 
     opinion.'' W. Virginia State Bd. of Educ. v. Barnette, 319 
     U.S. 624, 642 (1943). In the guise of conducting an 
     investigation concerning Supreme Court ethics, the Committee 
     appears to be targeting Mr. Leo because of disagreement with 
     his political activities and viewpoints on issues pertaining 
     to our federal judiciary. An investigation so squarely at 
     odds with the First Amendment cannot be maintained.
       Mr. Leo is entitled by the First Amendment to engage in 
     public advocacy, associate with others who share his views, 
     and express opinions on important matters of public concern. 
     ``[T]he freedom to think and speak is among our inalienable 
     human rights.'' 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 
     2311 (2023). Indeed, expressive activity of this kind is 
     afforded the greatest protection possible. See Connick v. 
     Myers, 461 U.S. 138, 145 (1983) (``[S]peech on public issues 
     occupies the `highest rung of the hierarchy [sic] of First 
     Amendment values,' and is entitled to special protection.'' 
     (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 
     (1982)). Yet Mr. Leo has, for years, been the subject of 
     vicious attacks by members of Congress, specifically 
     including members of the Committee majority, because of how 
     he chooses to exercise his rights. In reference to Mr. Leo's 
     public advocacy work, for example, Senator Whitehouse has 
     called Mr. Leo the ``little spider that you find at the 
     center of the dark money web.'' Senator Sheldon Whitehouse, 
     Remarks on the Floor of the United State Senate (Sept. 13, 
     2022). Similar remarks from Senator Whitehouse and others are 
     too numerous to recount.
       This campaign of innuendo and character assassination has 
     now moved beyond angry speeches and disparaging soundbites. 
     In the July 11 Letter, Committee Democrats have now wielded 
     the investigative powers of Congress to harass Mr. Leo for 
     exercising his First Amendment rights. That transforms what 
     has to this point been a nuisance occasioned by intemperate 
     rhetoric into a constitutional transgression.
       ``[T]he First Amendment prohibits government officials from 
     subjecting an individual to retaliatory actions for engaging 
     in protected speech.'' Nieves v. Bartlett, 139 S. Ct. 1715, 
     1722 (2019) (quotation omitted). Thus, an official is 
     prohibited from ``tak[ing] adverse action against someone 
     based on'' that person's expressive activity. Id. This bar 
     against retaliatory action applies to Congress as much when 
     it acts in its investigative capacity as when it legislates. 
     See Barenblatt v. United States, 360 U.S. 109, 126 (1959) 
     (``[T]he provisions of the First Amendment . . . of course 
     reach and limit congressional investigations.'').
       The Committee's investigation into Mr. Leo's relationship 
     with Justice Alito quite clearly constitutes an adverse 
     action for purposes of the First Amendment. The burden 
     created by a congressional inquiry is significant. See 
     Watkins v. U.S., 354 U.S. 178, 197 (1957) (``The mere 
     summoning of a witness and compelling him to testify, against 
     his will, about his beliefs, expressions or associations is a 
     measure of governmental interference.''). It can chill 
     expressive activity and infringe on First Amendment rights. 
     See, e.g., Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir. 
     2001) (``Any form of official retaliation for exercising 
     one's freedom of speech, including prosecution, threatened 
     prosecution, bad faith investigation, and legal 
     harassment, constitutes an infringement of that 
     freedom.''); see also United States v. Hansen, 143 S. Ct. 
     1932, 1963 (2023) (Jackson, J., dissenting) (noting that 
     an investigative letter sent by members of Congress ``can 
     plainly chill speech, even though it is not a prosecution 
     (and, for that matter, even if a formal investigation 
     never materializes).'').
       It seems clear that this targeted inquiry is motivated 
     primarily, if not entirely, by a dislike for Mr. Leo's 
     expressive activities. Retaliatory motive can be shown in at 
     least two ways: (1) where the ``evidence of the motive and 
     the [adverse action] [are] sufficient for a circumstantial 
     demonstration that the one caused the other,'' Hartman v. 
     Moore, 547 U.S. 250, 260 (2006); or (2) where ``otherwise 
     similarly situated individuals not engaged in the same sort 
     of protected speech'' were not subjected to the same adverse 
     action, Nieves, 139 S. Ct. at 1727. Both circumstances are 
     present here.
       As noted, Mr. Leo and the groups with which he is 
     affiliated have been subjected to a barrage of disparaging 
     remarks because of their views on judicial nominations and 
     other judicial matters. Sen. Whitehouse has attacked ``creepy 
     right-wing billionaires who stay out of the limelight and let 
     others, namely Leonard Leo and his crew, operate their'' 
     supposed ``far-right scheme to capture and control our 
     Supreme Court.'' Senator Sheldon Whitehouse, Remarks on the 
     Floor of the United State Senate (July 12, 2023). Senator 
     Durbin has similarly decried ``Leonard Leo and the Federalist 
     Society'' for their

[[Page S4716]]

     ``joint effort [with] very conservative groups, special 
     interest, dark money groups, and the Republican party'' to 
     shape ``what will be the future of the court.'' Senator 
     Richard Durbin, Interview with the Washington Post (July 13, 
     2023). And perhaps most tellingly, the present investigation 
     was announced with a statement titled``Whitehouse, Durbin Ask 
     Leonard Leo and Right-Wing Billionaires for Full Accounting 
     of Gifts to Supreme Court Justices.'' Sens. Richard Durbin 
     and Sheldon Whitehouse, Press Statement (July 12, 2023).
       These explicitly political attacks, and others like them, 
     made over the course of many years and reaching a crescendo 
     in the days immediately following the transmission of the 
     letter to Mr. Leo, provide an ample basis for concluding that 
     the July 11 Letter is animated by animus toward 
     ``conservative'' ``Right-Wing'' views and organizations, 
     rather than a purely genuine concern about Supreme Court 
     ethics. See Lyberger v. Snider, 42 F.4th 807, 813 (7th Cir. 
     2022) (explaining that statements from officials who took 
     adverse action can demonstrate retaliatory motive). The 
     circumstances of the Committee's investigation show that 
     ``retaliatory animus actually caused'' the adverse action 
     taken against Mr. Leo. Nieves, 139 S. Ct. at 1723.
       This conclusion is confirmed by the targeted and one-sided 
     nature of the investigation. Despite professing interest in 
     potential ethics violations and influence-peddling at the 
     Supreme Court, the Committee has focused its inquiries on 
     individuals who have relationships with Justices appointed by 
     Republican Presidents. Reported instances of Democrat-
     appointed Justices accepting personal hospitality or other 
     items of value from private individuals have been ignored. 
     Here are some examples:
       In 2019, Justice Ruth Bader Ginsburg was given a $1 million 
     award by the Berggruen Institute, an organization founded by 
     billionaire investor Nicolas Berggruen. See Andrew Kerr, Ruth 
     Bader Ginsburg's Mysterious $1 Million Prize, Washington Free 
     Beacon (July 19, 2023). Justice Ginsburg used the money to 
     make donations to various charitable causes of her choosing, 
     most of which remain unknown. See id.
       Between 2004 and 2016, Justice Stephen Breyer took at least 
     225 trips that were paid for by private individuals, 
     including a 2013 trip to a private compound in Nantucket with 
     billionaire David Rubenstein, who has a history of donating 
     to liberal causes. See Marty Schladen, U.S. Supreme Court 
     justices take lavish gifts--then raise the bar for bribery 
     prosecutions, Ohio Capital Journal (April 26, 2023).
       On September 30, 2022, the Library of Congress hosted an 
     expensive investiture celebration for Justice Ketanji Brown 
     Jackson that was funded by undisclosed donors. See Houston 
     Keene, Library of Congress explains why it hosted Jackson 
     investiture but not for Gorsuch, Kavanaugh, Barrett, Fox News 
     (Sept. 30, 2022).
       On two occasions, Justice Sonia Sotomayor failed to recuse 
     herself from cases involving her publisher, Penguin Random 
     House, which had paid her $3.6 million for the right to 
     publish her books. See Victor Nava, Justice Sonia Sotomayor 
     didn't recuse her self from cases involving publisher that 
     paid her $3M: report, N.Y. Post (May 4, 2023).
       Justice Sonia Sotomayor used taxpayer-funded Supreme Court 
     personnel to promote sales of her books, from which she 
     earned millions of dollars, including at least $400,000 in 
     royalties. See Brian Slodysko & Eric Tucker, Supreme Court 
     Justice Sotomayor's I staff prodded colleges and libraries to 
     buy her books, Associated Press (July 11, 2023).
       Throughout her tenure on the Supreme Court, Justice Ruth 
     Bader Ginsburg maintained a close relationship with the pro-
     abortion group National Organization for Women (``NOW''), 
     which frequently had business before the Court. See Richard 
     A. Serrano & David G. Savage, Ginsburg Has Ties to Activist 
     Group, Los Angeles Times (Mar. 11, 2004). Among other things, 
     Justice Ginsburg helped the organization fundraise by 
     donating an autographed copy of one of her decisions, and 
     contributed to its lecture series, even as she participated 
     in cases in which NOW filed amicus briefs. See id.; Katelynn 
     Richardson, Here Are the Times Liberal Justices had Political 
     Engagements that Were Largely Ignored by Democrats, Daily 
     Caller (May 5, 2023).

  Mr. WHITEHOUSE. I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________